Globally, judicial appointment frameworks differ considerably across jurisdictions, reflecting different approaches to ensuring transparency, meritocracy, and institutional independence. These frameworks play a pivotal role in safeguarding the rule of law and upholding the separation of powers, which are fundamental to democratic governance.
By examining systems in countries like the United Kingdom, India, and South Africa, valuable lessons emerge on how these goals can be achieved, highlighting both strengths and shortcomings that may inform the implementation of the Supreme Judicial Appointment Ordinance, 2025.
In the United Kingdom, the Judicial Appointments Commission (JAC) serves as a model of transparency and merit-based judicial selection. Established under the Constitutional Reform Act of 2005, the JAC operates as an independent public body, free from executive interference. The commission’s process emphasizes objectivity, with criteria for judicial office clearly defined and publicly available. Candidates are assessed through a rigorous evaluation process, which includes competency-based applications, independent references, and interviews.
Importantly, the UK system encourages public engagement by publishing detailed reports on selection processes and outcomes, fostering accountability. This openness, combined with the commission's independence, strengthens public trust in the impartiality of the judiciary, ensuring that appointments are made solely based on merit and not influenced by political considerations.
India’s approach to judicial appointments, governed by the Supreme Court's collegium system, offers a different perspective. The collegium, a body comprising the Chief Justice of India and the four senior-most Supreme Court judges, assumes the exclusive responsibility of recommending appointments to the higher judiciary.
While this system effectively minimizes executive control and underscores the judiciary's autonomy, it has faced criticism for its lack of transparency and accountability. The absence of publicly accessible criteria for evaluating candidates, coupled with the opacity surrounding the deliberation process, has led to perceptions of favouritism and inconsistency in appointments.
Renowned legal scholar Professor Upendra Baxi argues that the collegium’s closed-door nature undermines its legitimacy, despite its intent to shield the judiciary from political interference. Nevertheless, the system remains a crucial mechanism for preserving judicial independence in a context where executive overreach has historically posed a significant threat.
South Africa’s Judicial Service Commission (JSC) represents a more inclusive and participatory model of judicial appointments, striking a balance between independence and accountability. Established under the Constitution of South Africa, the JSC includes members from diverse sectors, such as the judiciary, parliament, legal academia, and civil society. This broad-based composition ensures that the appointment process reflects a wide range of perspectives and mitigates the concentration of power in any single institution.
Moreover, the JSC conducts public interviews for judicial candidates, a practice that exemplifies transparency and enables for greater public scrutiny of the process. Professor Klare K emphasizes that this approach not only enhances the perceived legitimacy of judicial appointments but also reinforces the democratic ethos embedded in South Africa’s post-apartheid constitutional framework. However, concerns about political influence within the JSC have been raised, illustrating the ongoing challenge of balancing inclusivity with independence.
These comparative examples underscore the diverse pathways through which nations strive to uphold the principles of transparency, meritocracy, and judicial independence in their appointment processes. While each system operates within its unique socio-political context, common themes emerge, including the necessity of reducing executive dominance, fostering stakeholder participation, and ensuring public accountability.
The Supreme Judicial Appointment Ordinance, 2025, could benefit significantly from incorporating elements of these frameworks, adapting their strengths to the Bangladeshi context while addressing their inherent challenges. By doing so, it can aim to build a strong and effective mechanism that ensures fairness, impartiality, and trust in the judiciary, aligning with global best practices.
Judicial independence shields judges from undue influence and protects the judiciary from external pressures
Impact on judicial independence and public confidence
The Supreme Judicial Appointment Ordinance, 2025, offers a crucial opportunity to formalize the judicial appointment process in Bangladesh. However, its current framework poses significant risks to judicial independence, a cornerstone of democracy that upholds constitutional values, the rule of law, and citizens’ rights. Compromising this independence endangers governance integrity and erodes public trust in fair justice.
An independent judiciary functions as a safeguard against governmental overreach, ensuring democratic accountability. The ordinance, as it stands, risks disrupting this balance by enabling executive influence in judicial appointments. A non-transparent, biased process diminishes judicial legitimacy, which depends on impartiality.
Judicial independence shields judges from undue influence and protects the judiciary from external pressures. Without these protections, the judiciary becomes vulnerable to politicization and public distrust, compromising its role as an unbiased adjudicator.
Public confidence in the judiciary is closely tied to the fairness and transparency of judicial appointments. If appointments are perceived as products of favouritism or political expediency, the trust that citizens place in the judiciary to act as an impartial judge is fundamentally shaken.
Scholars argue that the legitimacy of the judiciary is not derived solely from its constitutional mandate but also from the trust and confidence of the public it serves. When judicial appointments are viewed as non-transparent or influenced by political interests, it fosters a perception of judicial bias, undermining the principle of equal access to justice and weakening public faith in the legal system.
Moreover, the ripple effects of a compromised judiciary impact the broader governance framework. The judiciary serves as a critical safeguard against the misuse of executive power, ensuring that constitutional principles are upheld even in the face of political pressures. A weakened judiciary, subject to executive influence through non-transparent appointment mechanisms, risks becoming a mere extension of the ruling power and we have observed this trend over the past years in Bangladesh.
Such a development fundamentally alters the democratic balance, as the judiciary ceases to act as a check on the other branches of government. As history and comparative examples illustrate, nations where the judiciary has been co-opted by political forces often experience democratic decline, with significant consequences for individual freedoms and the rule of law and Bangladesh is a prime example of this.
At this juncture the integrity of Bangladesh's judiciary is vital for upholding democratic principles. A judiciary perceived as biased or influenced by external forces erodes the rule of law, minority rights, and impartial justice in sensitive cases, endangering equality, fairness, and accountability. While the ordinance aims to standardize appointments, its shortcomings risk weakening judicial independence and eroding public confidence if not addressed promptly.
Therefore, the Supreme Judicial Appointment Ordinance, 2025, has the potential to transform the judiciary but must overcome structural flaws to succeed. Transparent, accountable, and merit-based appointments are essential to preserving judicial independence, protecting constitutional values, and maintaining public trust.
The legitimacy of the judiciary is not derived solely from its constitutional mandate but also from the trust and confidence of the public it serves
Recommendations for reform
To align the Supreme Judicial Appointment Ordinance, 2025, with the fundamental principles of transparency, accountability, and impartiality, several key reforms are essential. At the heart of these efforts must be the restructuring of the Judicial Appointment Commission must be the cornerstone of these efforts.
A strong and well-balanced commission should include representatives from diverse sectors, such as the judiciary, civil society, and academia, alongside members of the executive. This broader representation would prevent the dominance of any single authority and ensure multiple perspectives are considered.
The presence of retired judges and renowned legal scholars within the commission would further strengthen its credibility. These individuals, unencumbered by career ambitions or political influence, could provide the objective oversight needed to uphold the commission's integrity. For instance, the Judicial Appointments Commission in the United Kingdom exemplifies such a structured and merit-based approach, functioning independently and ensuring that decisions are based on competence rather than political considerations.
A pivotal reform lies in the establishment of clear and transparent eligibility criteria. Ambiguity in the language of the ordinance, such as undefined terms like “suitability” and “integrity,” opens the door to subjective interpretation and potential misuse. To counteract this, eligibility criteria must be clearly outlined in objective and measurable terms, leaving no room for arbitrary decision-making.
A detailed scoring rubric, specifying the weightage assigned to candidates’ professional achievements, ethical standards, and judicial philosophy, is imperative. Such a rubric would promote uniformity and ensure that the selection process holds up under public and academic scrutiny. The South African Judicial Service Commission provides an illustrative example, where candidates are evaluated based on explicit criteria, including their judicial track record, independence, and understanding of constitutional principles.
Enhancing oversight and public engagement is another crucial reform. Mandating the disclosure of shortlisted candidates’ names, along with a detailed explanation of the rationale behind their selection, would introduce a layer of transparency that the current ordinance lacks entirely. This measure would not only deter favouritism but also foster public confidence in the appointment process.
Additionally, enabling parliamentary or independent review of appointments would serve as a vital accountability mechanism, ensuring that no undue influence undermines the integrity of the judiciary. In this regard, the United Kingdom offers a compelling precedent, where the lord chancellor is accountable to Parliament for judicial appointments, thereby providing a necessary democratic check on the process.
Finally, the ordinance should incorporate best practices from comparative jurisdictions. In the United Kingdom, the Judicial Appointments Commission operates independently, ensuring that the process is shielded from executive interference. Similarly, in South Africa, the Judicial Service Commission includes legal experts, legislators, and civil society representatives, ensuring a balanced and inclusive approach.
Adopting such measures in Bangladesh would address the systemic weaknesses inherent in the current ordinance, safeguarding judicial independence and minimizing the risks of politicization.
Reforming the Supreme Judicial Appointment Ordinance, 2025, along these lines is not merely a matter of procedural refinement; it is a fundamental step toward reinforcing the rule of law and the public’s trust in the judiciary. Drawing insights from global practices and tailoring them to Bangladesh’s unique socio-political landscape would create a framework that promotes transparency, accountability, and impartiality, ensuring that the judiciary remains a bulwark of democracy and justice.
The Supreme Judicial Appointment Ordinance, 2025, marks a key step toward formalizing judicial appointments in Bangladesh, addressing long-standing concerns about fairness, transparency, and meritocracy. However, its flaws -- ambiguity, concentrated authority, and lack of safeguards -- pose risks to judicial independence, a cornerstone of democracy. Without reform, the ordinance may enable executive dominance and undermine the judiciary’s credibility.
For this initiative to be effective, transparency, accountability, and judicial independence must be at its core. The current framework lacks clear criteria for evaluating candidates and does not provide sufficient avenues for public engagement, increasing risks of favoritism and political influence. Comparative models offer valuable lessons: the UK emphasizes merit and transparency, South Africa champions diversity, and India highlights judicial leadership. These approaches underline the need for balanced, participatory frameworks to ensure trust and legitimacy.
A strong and independent judiciary is essential for justice and democratic government. To make this ordinance truly impactful, the government must refine its provisions while ensuring that the judiciary retains its autonomy. By embedding accountability, transparency, and inclusivity into the process, Bangladesh can transform this initiative into a meaningful step forward, securing an impartial judiciary and reinforcing the rule of law.
Arafat Hosen Khan currently works as a Visiting Senior Fellow at the London School of Economics and Political Science (LSE) Law School, London, United Kingdom. He is also a Legal Scholar, Advocate for justice and democracy, expert in Constitutional Law, Politics, and Human Rights. He is the author of ‘The Constitution of Bangladesh: People, Politics, and Judicial Intervention.’ He is a qualified English Barrister and Advocate of the Supreme Court of Bangladesh with extensive experience in Constitutional and Human Rights law and policy development. He was serving as a Senior Lecturer and Former Head of the Department, Department of Law, North South University, Dhaka, Bangladesh. Read part one
